Crisco v. State

Keith CRISCO v. STATE of Arkansas

CR 96-713                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
                  Opinion delivered May 5, 1997


1.   New trial -- motion for new trial must be filed within thirty
     days of entry of judgment -- motion for new trial timely. -- 
     The motion for new trial was timely where it was filed within
     thirty days from the entry of judgment; a motion for new trial
     must be filed prior to the time fixed to file a notice of
     appeal, that is, thirty days.  

2.    Motions -- motion for directed verdict not sufficiently
     specific -- issue not preserved for review. -- Where, at the
     close of the State's case, appellant moved for a directed
     verdict on the premise that the State had not proven a prima
     facie case, the motion was not sufficiently specific to
     preserve the issue for review.

3.   Evidence -- purpose of chain of custody -- proof required. -- 
      The purpose of establishing chain of custody is to prevent
     the introduction of evidence that has been tampered with or is
     not authentic; the trial court must be satisfied within a
     reasonable probability that the evidence has not been tampered
     with, but it is not necessary for the State to eliminate every
     possibility of tampering; minor uncertainties in the proof of
     chain of custody are matters to be argued by counsel and
     weighed by the jury, but they do not render the evidence
     inadmissible as a matter of law; the proof of the chain of
     custody for interchangeable items like drugs or blood needs to
     be more conclusive.

4.   Evidence -- authenticity of drug tested not sufficiently
     established -- trial court abused its discretion by receiving
     substance into evidence. -- The marked difference in the
     description of a substance by an undercover officer and a
     chemist led the supreme court to the conclusion that there was
     a significant possibility that the evidence tested was not the
     same as that purchased by the officer; the State was required
     to do more to establish the authenticity of the drug tested
     than merely trace the route of the envelope containing the
     substance; the trial court abused its discretion by receiving
     a substance into evidence that was not properly authenticated;
     the case was reversed and dismissed.


     Appeal from Lonoke Circuit Court; Lance L. Hanshaw, Judge;
reversed and dismissed.
     Paul Petty, for appellant.
     Winston Bryant, Att'y Gen., by:  Kent G. Holt, Asst. Att'y
Gen., for appellee.

     Robert L. Brown, Justice.
     Appellant Keith Crisco appeals his judgment of conviction for
delivery of methamphetamine and his sentence for 20 years on two
grounds: (1) failure to prove authenticity of the evidence and a
proper chain of custody; and (2) insufficiency of the evidence.  We
agree that the State failed to prove that the drug tested was
properly authenticated, and we, therefore, reverse and dismiss.
     At trial, undercover police officer Samuel Hanes testified
that on September 22, 1994, he purchased a bag of what he believed
to be methamphetamine from Crisco for $100 in Cabot.  After
receiving the bag, he placed it in a sealed envelope and put it in
his safe in his home.  About a month later, he sent the bag to the
State Crime Lab for analysis.
     On August 3, 1995, Crisco was charged with delivery of
methamphetamine.  At the ensuing trial on January 4, 1996, the
prosecuting attorney sought to establish the chain of custody for
the substance purchased from Crisco.  Officer Hanes testified that
he put the substance in a plastic bag, initialed the bag, and
placed the bag inside a manilla envelope and then put the case
number, date of offense, description of the contents, type of
offense, and the name of the suspect on the envelope.  He attached
the Evidence Submission Form to the manilla envelope.  The Evidence
Submission Form described the substance as "One Bag of Off White
Powder Substance."
     On October 21, 1994, the State Crime Lab received the package
from Officer Hanes. On January 11, 1995, a report was issued by
Michael Stage, forensic chemist, in which he described the
substance analyzed as "One (1) triangular piece of plastic
containing a tan rock-like substance (0.310 gram)."  Stage
identified the substance as methamphetamine.  The evidence was
transmitted back to the Lonoke County Sheriff's Department, where
it remained in the office safe until the day before trial.
     Chief Deputy Sheriff Woody McCuen testified that he received
the manilla envelope involving Crisco from the State Crime Lab and
put it in the safe at the Lonoke County Sheriff's Department.  He
testified that the envelope he placed in the safe was the same
envelope introduced into evidence at trial.  Over objection of the
appellant based on lack of authenticity, the trial court received
the envelope into evidence.  Forensic chemist Michael Stage then
testified that he recognized the envelope, his initials, the date,
and the lab number which he put on the seal on the bag when he
finished his analysis.  He testified on cross-examination that the
plastic bag containing the methamphetamine was inside at least two
envelopes.  Stage testified on cross-examination that
methamphetamine ordinarily did not change colors and that he would
not have described the substance as "off-white powder."
     Defense counsel then objected to the introduction of the
envelope again on the basis that there had been no testimony that
the drug analyzed was the substance sent by Officer Hanes to the
State Crime Lab.  The prosecutor refused to recall Officer Hanes to
identify the substance analyzed by the forensic chemist but argued
that the deputy sheriff's identification of the envelope was
sufficient.  The trial court agreed.  Crisco was found guilty of
delivery of methamphetamine and sentenced to 20 years'
imprisonment.

                   I. Timely Notice of Appeal
     Though the parties have not raised the issue of the timeliness
of the notice of appeal, we do so on our own motion because the
issue pertains to subject-matter jurisdiction.  On January 5, 1996,
judgment was entered in this case.  Nineteen days later on January
24, 1996, Crisco filed a motion for new trial based on faulty chain
of custody.  On February 26, 1996, the trial court denied Crisco's
motion.  On March 25, 1996, Crisco filed his notice of appeal.  The
deemed-denied date for the motion was February 23, 1996.  Crisco
had until March 24, 1996, to file his notice of appeal and that
date fell on a Sunday, which gave him until March 25, 1996.  If
the motion for new trial was timely filed, the appeal is properly
before us.
     The motion for new trial was timely.  Under former Rule of
Criminal Procedure 36.22, a motion for new trial "must be filed
prior to the time fixed to file a notice of appeal." Bowen v.
State, 322 Ark. 483, 911 S.W.2d 555 (1995); Smith v. State, 301
Ark. 374, 784 S.W.2d 595 (1990); Banning v. State, 43 Ark. App.
106, 861 S.W.2d 119 (1993).  That period, of course, is thirty
days.  Ark. R. App. P. - Crim. 2(a).  See also Bowen v. State,
supra (citing Ark. R. App. P. 4).
     We take this opportunity to correct obiter dictum in two
decisions that indicates that the motion for a new trial in a
criminal case must be filed within ten days of entry of judgment. 
See Guinn v. State, 323 Ark. 612, 917 S.W.2d 529 (1996)(per
curiam); Fuller v. State, 316 Ark. 341, 872 S.W.2d 54 (1994).  The
correct time period is 30 days as Rule 36.22 (now Rule 33.3) makes
clear.

                 II. Sufficiency of the Evidence
     Crisco contests the sufficiency of the evidence, but we
conclude this issue is not preserved for our review.  At the close
of the State's case, Crisco moved for a directed verdict on the
premise that the State had not proven a prima facie case.  We have
held that such a motion is not sufficiently specific to preserve
the issue for our review.  Gray v. State, 327 Ark. 113, 937 S.W.2d 639 (1997).  See also Ark. R. Crim P. 33.1; Walker v. State, 318
Ark. 107, 883 S.W.2d 831 (1994).  The same holds true in the case
at hand.

                      III. Chain of Custody
     Crisco complains that the chain of custody in this case was
insufficient because the methamphetamine was easily interchangeable
and because the varying descriptions of the substance raised an
inference that a break occurred somewhere along the chain.  He
specifically points to Officer Hanes's testimony that the drug was
an off-white powder substance, while the forensic chemist described
the drug as a tan, rock-like substance.  In sum, Crisco argues that
the trial court abused its discretion in allowing into evidence an
exhibit that was not properly authenticated.
     The purpose of establishing chain of custody is to prevent the
introduction of evidence that has been tampered with or is not
authentic.  Newman v. State, 327 Ark. 339, 939 S.W.2d 811 (1997);
Lee v. State, 326 Ark. 229, 931 S.W.2d 433 (1996); Harris v. State,
322 Ark. 167, 907 S.W.2d 729 (1995).  See also Ark. R. Evid. 901. 
The trial court must be satisfied within a reasonable probability
that the evidence has not been tampered with, but it is not
necessary for the State to eliminate every possibility of
tampering.  Newman v. State, supra; Lee v. State, supra; Harris v.
State, supra; Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988). 
Minor uncertainties in the proof of chain of custody are matters to
be argued by counsel and weighed by the jury, but they do not
render the evidence inadmissible as a matter of law.  Gardner v.
State, supra; Nash v. State, 267 Ark. 870, 591 S.W.2d 670 (Ark.
App. 1979).  We have stated that the proof of the chain of custody
for interchangeable items like drugs or blood needs to be more
conclusive.  Lee v. State, supra; Gardner v. State, supra; Brewer
v. State, 261 Ark. 732, 551 S.W.2d 218 (1977).
     Crisco relies primarily on Munnerlyn v. State, 264 Ark. 928,
576 S.W.2d 714 (1979), to support his thesis that the chain of
custody was insufficient.  In Munnerlyn, the appellant was
convicted of selling methamphetamine, and he complained on appeal
about the irregularities in the custody chain.  He contended that
the prosecutor should have presented testimony, in addition to
chain-of-custody evidence, that the drugs introduced at trial were
the actual drugs sold by the appellant.  We disagreed and traced
the possession of the envelope containing the drugs.  We further
noted that tampering had not been suggested by the defendant and
that the circumstances of the case did not suggest a significant
possibility of tampering.  Thus, we held that the trial court had
not abused its discretion.
     In the case before us, Crisco hinges his contention of lack of
authenticity on the fact that Officer Hanes's description of the
drugs differed significantly from that of the chemist, Michael
Stage, in color and consistency.  In fact, the chemist admitted
that he would not have described the substance as off-white powder. 
Crisco's point has merit.  True, there was no obvious break in the
chain of custody of the envelope containing the plastic bag or
conclusive proof that any tampering transpired.  Yet, the marked
difference in the description of the substance by Officer Hanes and
the chemist leads us to the conclusion that there is a significant
possibility that the evidence tested was not the same as that
purchased by Officer Hanes.  See Munnerlyn v. State, supra.  This
is especially so when we consider that the drug involved is a
readily interchangeable substance.  Lee v. State, supra.  Under
these circumstances, where the substance at issue has been
described differently by the undercover officer and the chemist, we
believe the State was required to do more to establish the
authenticity of the drug tested than merely trace the route of the
envelope containing the substance.
     We hold that the trial court abused its discretion by
receiving a substance into evidence that was not properly
authenticated.
     Reversed and dismissed.